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Sample Instructions: Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence

In this prior post it was suggested that the term “expert” should not be used when referring to witnesses in the jury instructions. Below is a non-exhaustive list of sample instructions which eliminate the term “expert” from the instructions:

F 332 Inst 7 (a-d) Deletion Of The Term “Expert” From Expert Witness Instruction

*Modify CC 332, Instruction Title, to provide as follows:

Opinion Witness Testimony Based On Knowledge, Experience, Education, Etc.

Alternative a:

*Modify CC 332 to provide as follows:

(A witness was/Witnesses were) allowed to testify and to give [an] opinion[s] about _____________<insert subject of opinion testimony> [__________ <insert other>] [,] [and] [__________ <insert additional subject>] [.] [,] [and] [__________ <insert additional subject>]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of such a witness, follow the instructions about the believability of witnesses generally. In addition, consider the witness’s knowledge, skill, experience, training, and education, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in reaching that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

[A witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert‘s witness‘s opinion.]

[If the witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts‘ witness‘ qualifications.]

Alternative b:

*Replace CC 332 with:

You have heard a witness [witnesses] give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case.

[Source: 7th Circuit Federal Jury Instructions—Criminal 3.07 [Weighing Expert Testimony] (1999).]

Alternative c:

*Replace CC 332 with:

When knowledge of a technical subject matter might be helpful to the jury, a person having special training or experience in that technical field is permitted to state an opinion concerning those technical matters.

Merely because such a witness has expressed an opinion, however, does not mean that you must accept that opinion. The same as with any other witness, it is up to you to decide whether to rely upon it.

[Source: 11th Circuit Pattern Jury Instructions—Criminal Basic Instruction 7 [Expert Witnesses] (1997).]

Alternative d:

*Replace CC 332 with:

A witness who has special knowledge in a particular matter may give an opinion on that matter.

[Source: Idaho Criminal Jury Instructions, ICJI 104 [ Trial Procedure And Evidence] & & 8 (Idaho Law Foundation, Inc., 1995).]

Modify CC 360, sentence 1 to provide as follows:

___________<Insert name> testified that in reaching (his/her) conclusions, (he/she) considered [a] statement[s] made by ___________ <insert name>.

*Modify sentence 3 to provide as follows:

You may consider (that/those) statement[s] only to evaluate witness’s opinion.

Use Of The Term “Expert“ In Jury Instruction As Improper Comment On The Evidence

As recently recognized by the United States Supreme Court, the effect of testimony on a jury can be “heightened due to the source of the testimony.” (Buck v. Davis (2/22/2017) ___US___[187 Led 2d 35].) For example, when testimony in a death penalty trial regarding the defendant’s future dangerousness comes from a “medical expert bearing the court’s imprimatur … [r]easonable jurors might well have valued his opinion concerning the central question before them. See Satterwhite v. Texas, 486 U. S. 249, 259, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (testimony from “a medical doctor specializing in psychiatry” on the question of future dangerousness may have influenced the sentencing jury).” (Ibid.)

Accordingly when the judge uses the term “expert“ in the jury instructions to describe a witness the jury may view this as a judicial comment on the value of the witness which, in turn, may encourage the jurors to give greater weight to the “expert” testimony than it deserves. (See FORECITE, F 101.10 Inst 3 Jurors Not To Take Cue From Judge As Distinct Principle and F 101.10 Inst 4 Jurors Not To Take Cue From Judge Re: Defendant, Counsel.)

This is of particular concern in light of the modern reality that the “expert witness“ is no longer likely to be neutral and objective (the idea once upon a time when expert witnesses were new to the judicial system), but rather will almost certainly be a partisan of the party that hired him or her.

A way of dealing with the danger that jurors may be unduly deferential to “expert” opinion testimony is to preclude both the judge and counsel from using the term “expert.“ Instead, the expert witnesses could be referred to as “opinion witnesses.“ (See e.g., Stephen A. Saltzburg, “Testimony from an Opinion Witness: Avoid Using the Word ‘Expert‘ at Trial,“ Criminal Justice, Summer 1994, p. 35; see also 5th Circuit Pattern Jury Instructions—Criminal 1.17 [Expert Witness] (2001); 7th Circuit Federal Jury Instructions—Criminal 3.07 [Weighing Expert Testimony] & & 1 Comment (1999) [“term ‘expert’ has been omitted to avoid the perception that the court credits the testimony of such a witness“ ]; 11th Circuit Pattern Jury Instructions—Criminal Basic Instructions 7 [Expert Witnesses] (1997) [witness not referred to as expert in body of instruction]; Oklahoma Uniform Jury Instructions—Criminal, OUJI-CR 9-42 [Credibility Of Opinion Witness] (Oklahoma Center for Criminal Justice, 2nd ed. 1996, 1997 Supp.).)


In the next blog post sample instructions on this issue will be provided.